Sanjay Kumar Sinha vs State Of Jharkhand And Ors

The petitioner has approached this Court with a prayer for a direction upon the respondents to consider the case of the petitioner for adhoc promotion from the post of Section Officer to the post of Under Secretary in light of the provisions enshrined in Resolution No.6227 dated 20.11.2008 issued by the State of Jharkhand. Further prayer has been made to direct the respondents to pay the non-functional pay in PB-III (GP-5400) to the petitioner in view of the Circular contained in Resolution No.2557/F dated 18.07.2014. Further prayer has been made for a direction upon the respondents to pay all consequential benefits to the petitioner for which the petitioner is entitled for.

The case of the petitioner lies in a narrow compass. The petitioner was appointed as Assistant in the unified State of Bihar by the Personnel, Administrative Reforms and Rajbhasha Department on 01.09.1986 and the services of the petitioner was confirmed w.e.f. 02.09.1988. After bifurcation of the State of Bihar, the services of the petitioner was allocated to the State of Jharkhand. It is specific case of the petitioner that after rendering satisfactory services, he represented before the respondents for consideration of his case for promotion to the post of Section Officer in view of the Circular contained in Resolution No. 6227 dated 28.11.2008, which provides for adhoc promotion since the criminal case was pending against the petitioner, but the same was not considered. Aggrieved by the same, the petitioner has earlier approached this Court by filing a Writ Petition being W.P.(S) No.7968 of 2012, which was disposed of vide order dated 17.12.2013 with a direction upon the respondents to consider the case of the petitioner in view of the State Government's Resolution dated 20.11.2008. Pursuant to the said order, the case of the petitioner was considered and granted promotion to the post of Section Officer on adhoc basis on 20.02.2014. It is further the case of the petitioner that in view of the Resolution of the State Government being Resolution No. 2557/F, the petitioner made an application for grant of non-functional pay scale in Pay Band-III (Grade Pay 5400/-) as he has worked for 12 years to the post of Assistant and one year additionally to the post of Section Officer. The petitioner also made representation for consideration of his case for promotion to the post of Under Secretary from the post of Section Officer on adhoc basis, but no heed was paid on the said representations and as such, the petitioner has been constrained to knock the door of this Court.

Ms. Neha Bhardwaj, learned counsel for the petitioner strenuously urges that petitioner is entitled for the adhoc promotion to the post of under Secretary as his case has not been considered for regular promotion. Learned counsel further argues that petitioner is entitled for consideration of his case even if a criminal case is pending against him as earlier his was considered for promotion on adhoc promotion to the post of Section Officer as he fulfills all the required qualification for promotion. She further submits that the petitioner has completed 12 years of service to the post of Assistant, he is entitled for grant of non-functional Pay Band- III (Grade Pay 5400/-) and as such, a direction may be given upon the respondents to consider the case of the petitioner for promotion on adhoc basis to the post of under Secretary and also to grant the non-functional pay scale in Pay Band-III (Grade Pay 5400/-)

Per contra, counter-affidavit has been filed. Ms. Shrestha Mehta, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner has been charge-sheeted on 12.05.2008 in connection with Bihar Vigiliance P.S Case No.19/2005, wherein, the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand has also accorded sanction of prosecution against this petitioner and accordingly cognizance has also been taken by the Special Vigilance Court, Patna and information in this regard is issued by Superintendent of Police Vigilance, Patna. Learned counsel further submits that the case of the petitioner was placed in the meetings of the Departmental Promotion Committee on 23.01.2015 and 23.12.2015 respectively, whereby, the petitioner was considered not fit for promotion to the post of Under Secretary mainly on the ground that he has been holding the post of Section Officer on adhoc basis has not been regularized on the said post as well, his tenure on the post of Section Officer was not completed. She further argues that the case of the petitioner was again placed on 10.05.2016 for consideration for promotion to the post of Under Secretary and in this Meeting decision has been taken by the Departmental Promotion Committee to adopt the 'Sealed Cover Procedure'. Learned counsel further submits that the order dated 10.05.2016 has not been challenged by the petitioner. The adhoc promotion has already been considered and granted to the petitioner earlier as Section Officer. Admittedly he has not been regularized on the said post. However, again he is claiming further promotion on adhoc basis, which is not tenable in the eyes of law and rightly, same has been kept in 'Sealed Cover Procedures'. It is also argued that the petitioner is not entitled for non-functional pay scale in the PB-III (Grade Pay-5400) as he had not been regularized on the post of Section Officer, the Circular talks of regular promotion on the said post and as such, he is not entitled for non functional pay scale. Justifying the order dated 10.05.2016/12.05.2016, learned counsel submits that rightly the case of the petitioner has been kept in 'Sealed Cover Procedures' and has not given the benefit of non-functional pay scale.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out for interference. Earlier the case of the petitioner was considered and accordingly, Adhoc Promotion to the post of Section Officer was granted as the criminal case was pending against him. The services of the petitioner to the post of Section Officer has not been regularized, meaning thereby the petitioner was not given the regular promotion to the post of Section Officer and as such, his promotion to the said post has not been confirmed. The adhoc promotion does not confer any right for regular promotion and as such, adhoc promotion shall continue till further orders by the Competent Authority and only after acquittal in criminal cases or being fully exonerated in Departmental Proceeding, adhoc promotion may be confirmed. Taking into accounts the different Circulars of the State Government, which talk of adhoc promotion in case of pendency of criminal case, the respondents have rightly kept the case of the petitioner in 'Sealed Cover Procedures', therefore, I do not find any illegality or infirmity in the order of the respondents.

Similar issue fell for consideration before this Court in case of State of Jharkhand & Ors. Vs. Vinod Mani Diwakar & Ors., reported in 2010 (2) JLJR 89 wherein it has been held that 'Government servant against whom disciplinary proceeding or criminal case is pending, can be allowed ad hoc promotion and that such ad hoc promotion shall not confer any right for regular promotion and as such, ad hoc promotion shall continue till further orders and only after acquittal in criminal case or being fully exonerated in departmental proceeding, ad hoc promotion so made may be confirmed. Government servant cannot as a matter of right claim promotion at best a govt. servant can seek a direction from the Court or Tribunal to consider his case of promotion.'

However, from perusal of the documents brought on record, I find that the order of rejection has not even been challenged. So far as, benefit of grant of non-functional pay scale is concerned, the petitioner is also not entitled for the same as the services of the petitioner has not been regularized to the post of Section Officer and as such, the reliance of the petitioner at Annexure-6 to the writ petition dated 18.07.2014 is also of no help to him. The said Rule dated 18.07.2014 is applicable in the case of regular promotion and not in the case of the petitioner as he has not been considered for regular promotion.

As a cumulative effect of the aforesaid observation and judicial pronouncement, I do not find any merit in the instant case and same is hereby dismissed.